Karnataka High Court
Cipla Limited vs U & I System Design Limited on 5 April, 2011
Author: Aravind Kumar
Bench: Aravind Kumar
THIS COMPANY PETITION IS FILED
ASSIEI and (f) READ WITH 55ECTIOI~.I_ OI?' "
COMPANIES ACT, ISEE RRAYINC THAT
STATED THEREIN THIS HON'BLE.I'CQURT.MAY EEV'%IRI';EASfED'
TO:
WIND UP THE RESVPQVNDEZNTI.nI_:C{3MPAN'Y'W 8: I
SYSTEMS DESIGN LIMITED"; III: WITH THE
COMPANIES ACT: 1956 AI\I.Dw-.:.(§.RA;I?\IfIf_ "OTHER AND
FURTHER RELIEES ;_AS'jI;:lVAY;333E ;I')']«:1',I:5'JT\/I.:IViZ'1§V')' "F171;.
THIS CO.IIzIRAIxI§I* CONIIIIC ON FOR ORDERS
THIS DAY, THE FOLLOWING:
IS S€3éKiQ.g."fOF winding up of respondent
cOIII:p2A3.IIy iII"IC1<:+If: 433 (E) and 433 (I) read with Section Of Act, 1956 Contending that the I _If1OISDOII_§iCIIt COIIIIISIHI IS unable to pay ITS acimitéed debt. _< "P€A}[ifi0I'1€F IS 22. Company II1COI'pOratCd under the I ,V7pFQ"s5':'é'§Ei}'IiS Of the Campanies Act Carrying On The DIISIIICSS III W_DiI.3.I9TII2ICEIIiIC:3;§S and HHIECI §3I'OdUCiSI WW,» the rate of 14% p.21. at four monthly rests. It is e0:1*ce_01f'n:i0_eci.ivv that respondent agreed to repay the said amount ~ INSTALL ~ME1NTS DATE TOVVARDS PRINCIPAL AMOUNT Towmabsfl INTEREST V jtfinei-Y."
13*.
17.10.2003 75000,000_ 14,0.0;000 0Ve::;00;00i%0. * A 211:} 17.02.2004 75,00,000' vV..§e0,50§000'¢e' 55,50,000 3rd 4th 17.08.2004 17.10.2004 751004000000 75,0O_;000'[ 3' 0 E 50030.0 80,00,000 78,50,000
4. It is c00teride_d that respondent fell due for payment .0f00vsVee0I1d".if1's.tez11n1ent on 17.02.2004 and towards part ;)§1§(01e11f respondent issued a cv}1eque'.4E.;j)e';a1ringVN0,V_4066V53 dated 27.07.2004 drawn on e::§n.k'V¢f.I§i0igj;i'¢e;;n.ga1ore for %e5,00?000/~ and said Cheque 0' '_»..¢2:e;--:;0:é' 3:253 same is g-erzéhzg". :_.._wher1 7preé§eVnie'ci0"'f0_r'eizieashment came to be returned with an Vlendersemeéizt "--7V'I13siiffieient Funfis". it is aise stated that +.§:r00eedings having been ienitiated under the '*.§:'0:zi:~;i<:§::e' 00f Negotiable hzstrumente AC: fer dishoneur of subsequently fourth installment alse having falien dL_1_e__ on 17.10.2004, respondent is said to have issued eheques bearing N0.5O71-47 and No.5()715G dated----u C§6.V1 V' drawn on Bank of India for x which also came to be dishonoured su;ehA. p.€titisfi:i1€f'~_ claims to have forwarded statelfieeiit of 'Viper Exhibit~K to the respondent' .i.;1f<::r'1f211"'1e;.;'>V'_:'f.i7fv1VV'<':';e.§esj:$ef1de'fi;: about the amounts due and payab'I e.$ 'ihat inspite of several reminders ELEII5-'.1 to time calling upon the responéieI'1":§""te" Same was not paid and petitio1j1e'1*"T' Vfistatutory notice on 01.12.2005 cieiliflg to pay the petitioner a sum of e;i':ei 1ieixfe of interest which is duly se.rf{rec"i.. Qr1':e.:1:esi};';er1eien*:'.V"V Aflfiiee copy sf statutory notice dated
01. postal receipt and acknowledgement prodzieéed {with petition as per Exhibits» L, M AND N ' ~;»é:;sp¢c+::;;¢1y, " Effie contended though respanelent has received notice, demand made therein has met; been petitioner for order of advertisement, it was noticed court that respondent was not able to discharge the 0' tnspite of sufficient opportunities haf:"ing"bee.n gr_a1'ited;'Wno"; bonafides was exhibited by respondent"tel'inspire_~_eOnfi<:le:nee0* in the Court. Hence, this court clateel permitted the petitioner in newspapers "T he Hindu" to get it published by 02.02.2007.
Accordingly lrlevtrspapers for having taken out _0net2§flspapers as Ordered. Thereafter nlatterl from time to time for eonsideringthe request'otl'-reshnondent to enable it to make , " ...... ..
was listed on 15.11200? It was 0' Jnetieed hythis' Caurt that petitioner has made a claim against llfer' a sum of ?3/15,35,890/w and respondent made payrnent sf €'8§,O0,000/~ whieh is net aeeeu..nted by petitioner. it was eententded by respendents é//WWW , eornpaiiyhand fEie.1*e'a;fe foreign companies which have evinced 'interest tollreifiyel the same and it would come out with a lileorn the order sheen this Ccgiuri having exiended 11 Call after 8 Weelie".
8. As also submission made by learned respondent which Came to be 1*ecorcle{i"bj;i_ this 1304,2009 which reads as under: _ "'l3§O4.2009 ~ Sri.C.G.Gopavla""i. Sxxfani.3}_,"'Aa counsel appearing for... the'o.i-i"eepon'dent leompany Submits that all effortvs""v;oi4ld%_ settle the dues of the petitioner 'CQIi'ipaTly 'period of six weeks from liofiiay. placed on record. In; given by the learned_eQ_iins;el list this petition on f
9. Thefegftevr i'ee§pondent once again started reviying its}¥req~11est Vliorefnrifher adjournment on the ground thai;__the're_ '«a'..¥p'oesibility of revival of the respondent:
eoneifete proposal for payrnent of substantial arnouni; As is per e§;h:b::4E: v:5_gC)6.2003 whereunder It has agreed to repay a.~ea.1;n:Atef ?'3,{)O,C)C¥,OQ€}/~ aieng with interest at fe'tn9'e.e§natedA'Ainetaittnents at 3'35 lakhs; each at the end of feur nétentiie.--priiieipai '§{}\£iF'f<;1EdS interest aeerued thereen. Said 13 Respondent has Claimed that it has repaid 2:
?'88,00§OOO/« by way of demand drafts. It is also _ by respondent that petitiener has reeei\;feAd>_a stmi' .4 134,000 appraxirnately equal to ?'89§C):C)A,O¢3:GA,/54 representative in the United 'V Trading LLC from M/s.Thu1j_aya Company a customer of the had failed to disclose the4.:;feg:eip_t'V'V'df to the respondent. Petitgoderp 13.03.2007 and denied theta the statement of objections.
11. this n'étiee'd ..'~frdn:1VA"'the records that respondent eernpany has 5eXee't1Ated anwon demand promissnry note" as ealetdated can reducing balance method to be paid in M"
% "M/I 16 a petition for xvinding-51;p"--.__ {izhefe.__ "
Creditor claimed a sum forhgeezds s:{o1«_:i tq 1 company and the tionapathjeeqntetitietttnthett no price had been : sum demanded by the creelttei (See London and I?_a"rie B;:'hki1ig" Again, a petition for who claimed payment fer teerk done for the e0mpa:1y""" ,eethpa1i$}?V"eentended that the work properly was not aI10wed.'A(Seet Brigh'tt5r;- and Horfold Hate} Co. Ltdw \X2neé§~'eV 'the debt is undisputeci the Court upet1V'éi"'€iefenee that the company has the " ability the debt but the company that particular debt. [See A _ Corripany,' Rea) Vxfhere, however, there is no doubt company owes the creditor 2: debt him to 3 wiiidingwup erder but the exact « of the debt is disputed the Court will make T' a~--vtrinding~up order Without tequiring' the ere<;iit0r' Ste quantify the debt precisely. {See Tweeds Garages Ltd" Re?) T he principles an which the Court acts are first that the defence of the eompany is in good faith and one of eubstenee, eeeendfy, the éetenee is likely '£9 stzezxteed in p<:32':r1t; ef law, aztci, t:h:Erdi§; the xvhateeefizee this regard. Infect there is a clear en the dates when adjournment eame fiialiing payment and if would éepiet that "aeimissien on the part of respondent about its 2 peyebie tie the peiitiener eempany. Feéiiien 18 Winding up fee reasonable; Seeen<:I}y, whether ther_e~.V '-.._ '- are matters which should be inquired inte » '4 investigated if 21 Windingup order is made.,__»ii. alee 'W€H*S€ifl€d that 3. windir1g-up :"0i'ti'er.x§*fi1 made on 3. ereditefe petitiene-if benefit him or the eempanye 'e:edi{ore gerxeff e.;}fi;r.,_VV The grounds furniehed by the'V'VL'e:e;je'ditore"
the wizzdingup will haxreen die the reasonableness of Erie' 5: J. Macme Ltd.' R€8)§,_ _ 11,: . _ . ..
12. It is r1oi::i<:e§.. '%;;j3{ the past five years period peediion was pending, respondent has" been 'b_i€£ijr:gV"'fQf'« "time to save itself from sinking company ofltlfie gfefifzdfilat it would be able to revive its é;j:92i1:$ae'fi:i\_<5:1s,_Aby «.i:1Viti:i'g""f0:*eign companies. No materiai vV.v:f)'ir'e<:tor o'f.__the'v're:s!§;333onCtent Company, There is no merit in the made by these two persona Henee said the petition is hereby rejected. in so far as raisefi to by the eornpany whereunder it ie eiaiined ai--r._. T'"§;:;{"3'€'$i3©i1t1gnt M/efopline Trading LLC, t}i2i:2ai§ UAR has 19 having been ad:mit;te<:1, there is no good ground respondent for either deferring the itorder '_ particularly when it has; admitted its to to the petitioner. V i H V V V i This court by order e\_='e;n_ iialiloiired the applications filed by two .AA5fi,;féctions to the petition was taken the same would go to ShOW that filed by Managing Director of notice of winding up by Smt.R.Shobha, and Smt.Shubh;1}0rada4"Ittgi;hwh-oware none other than mother of Wife otéri;R.P.Itigi i.e., wife of the Managing Direetorof the"reSpfor1.¥:ient Company and mother of Managing 20 received the said amount on behalf of the pet.iVt_ior1:er.,ifno'h material whatsoever is placed to evidencethe'sai_d'--.faet..iV:Inilaee' the said claim of the respondent recedes to._baehgron_nd in much as respondent has made adrnisjdsion on 11.04.2007 whereunden the eoun_seH1_f§ for respondent sought to produce' 'ddcu§n1en.t'svdA'top substantiate the claim made by it with regard_:toVVth_eb been paid to the petitioners' ait has not been placed 1:111 todasz show said claim made by resptodndentvf, ' :7-ia Further on 15.11.2007 a ::'re.spondent that payments of ?89,00,00(')/~ = as against claim of :5 evid__e_n<:e the fact that a sum of ?89 1a1d1s'~has:bee'n respondent has also not placed any material "Wha._:p,sne€?er,_ such contention of the respondent raised in the objection statement as also by shareholders niother and wife ef the Managing Director is Without liable to be rejected and aeeordingiy it is hereby r"%~""' 54490"
MM», 21 l2. in the Circumstances stated above and inp.~-the background that petitioner having produced rnaterial along with petition to establish the H respondent company is unable to pay its debtfiyitiiiii definition of Section 483 (e) of the Co':r1paniesd.';§et;. petition deserves to be allowed and«rr.p:ét'eeordi11gly, the following order:
1. Co.P.58/2006 is aiiovmi.
2. Respondent and Designs Limited this Court under the provisions ofuthe l956.
3.:r.~€)ffieia_§»'-iiiqiiideitorhéittaehed to this Court is appointed as liquidettor respondent company and is directed _vforth'with todt'e,iiE;e..e1eharge of eornpany in liquidation, shell be advertised by a notice in the prescribed l_t_o__i'rn:l'tnsl~:ing such order in the newspaper "the Hindu"
%, J 22 {English daiiy}, Karnataka edition and "Prajavani" (Kannada daily} newspaper, Bangalore edition.
5. That the petitioner shall file cert:ifie_d....::Qpy _-ij'f"i,;';£i~;, with Registrar Qf Companies within::iorith"*ffi;:1i'»:i;hé'i.j date of receipt of this order.
6. Petitioner shall deposit 'M W with the Official Liquidator the expenses to be incurredififi €:)mpany.
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